Britney’s Custody Fight Did the public meltdown hurt her case?

By Peg Tyre

Sept. 18, 2007 – Britney Spears may be losing her fan base, but now, as her latest misadventures spill into Los Angeles Superior Court, the tabloids are asking: could she also lose her kids? Like many divorcing moms, Spears is trying to hammer out a permanent custody arrangement with her ex, dancer Kevin Federline, the father of her two sons, Sean Preston, 2, and one-year-old Jayden James. Currently, Spears, 25, and Federline, 29, split physical custody of the children. Unlike with most moms, though, her celebrity—and, lately, notoriety—has become an issue. Yesterday her former bodyguard Tony Barretto charged that while he was employed by Spears she regularly appeared naked in front of the children and used drugs while they were in her care. “He became very concerned about the children and their safety,” Barretto’s lawyer told reporters yesterday.

How do judges decide? In most states the judge who presides over a custody negotiation begins each case with two presumptions: that children need contact with both parents, and that both mom and dad are fit to raise their own kids. A judge then figures out who should get physical custody and who has decision-making power over the child’s life— usually the parent who gets physical custody. The formula a judge uses for determining who gets the kids is straightforward: whichever parent shows sufficiently strong judgment to protect the health and safety of the child. But the calculations, especially when it comes to celebrity parents like these ones, are anything but simple.

You won’t lose custody for being famous—or infamous—even if you’re famous for being odd. “The job of the judge is to figure out what the public persona of the celebrity is, what’s just for the benefit of the press, and what kind of job that person is doing as a parent,” says Gregg Herman, a family practitioner in Milwaukee and chair of the American Bar Association’s Family Law section. So that means prancing around with a snake, or kissing Madonna on internationally televised awards shows, shouldn’t affect her chances of getting custody of her Sean and Jayden.

Being erratic, though (Spears shaved her head in public, was filmed bashing paparazzi cars with a golf club and got chucked out of swanky hotels for smearing food on her face), can hurt. At a certain point this kind of bad behavior “can indicate a personality or psychiatric disorder,” says Herman. “That will certainly, in a judge’s mind, affect what he or she thinks may be in best interest of the child.”

Drug and alcohol use? A big No. Even if you get tanked on a weekend when the kids are with your ex, getting drunk can hurt your case. And if you get filmed doing it, expect trouble. “In that way, her celebrity is an extra burden,” says Gaetano Ferro, president of the American Academy of Matrimonial Lawyers, of Spears and Federline, whom he does not represent. “She’s living in a glass house. He’s not. There’s a double standard, because every move she makes will be recorded in the press.” Drug use or excessive intake of alcohol at any time shows poor judgment, lawyers say, when you are trying to prove your behavior is above reproach.

Going into rehab doesn’t hurt your chances of getting custody; judges want to ensure that you’re sober, but they would prefer parents deal with their addictions instead of denying them. The latest allegations, though—that Spears used drugs around her children—are expected to be devastating to her bid to keep physical custody of her kids. “There are very few situations worse than drug use in front of a child to persuade a judge to keep a parent away from a child,” says Randy Kessler, who practices family law in Atlanta and specializes in high-profile divorce. “It’s not a legal calculation. It’s simply not good for the child.”

If the judge believes the allegations are true he can order Spears to see her kids under the supervision of a relative or a court-appointed monitor, and to undergo regular drug tests.

When parents battle for custody, lawyers say, the parent who has more money can expend resources—hiring a private investigator, for instance—to dig dirt on the other. In the Spears/Federline case, though, she may have the money but not the upper hand. Spears’s constant publicity-seeking means that all of her behavior—good and bad—is on full display. And that seems to only bolster the case of her ex-husband.